MEMORANDUM
I. INTRODUCTION
. This case, arises from the termination of plaintiff Paul Mathis’s employment as an installation mechanic with defendant Christian Heating and Air Conditioning, Inc. (“Christian HVAC”). Plaintiff alleges that his employment was terminated on the basis of religious discrimination and in retaliation for the exercise of his religious beliefs as an atheist. Specifically, plaintiff was fired for covering defendant’s religious mission statement on the back of his employee I.D. badge.
In the Complaint, plaintiff asserts claims for unlawful termination, unlawful retaliation, and denial of a reasonable accommodation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Pennsylvania Human Relations Act, 43 Pa. Stat. §§ 951 et seq. (“PHRA”). Defendant contends, inter alia, that plaintiff was not subject to discrimination on the basis of his religious beliefs. Defendant also argues that accommodating plaintiff would substantially burden defendant’s sincerely held religious beliefs in violation of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (“RFRA”).
Presently before the Court are Plaintiffs Motion for Partial Summary Judgment to Dismiss Defendant’s Twenty-Eighth Affirmative Defense and the Motion for Summary Judgment of Defendant Christian Heating & Air Conditioning, Inc. as to all claims. For the following reasons, the Court grants plaintiffs Motion for Partial Summary Judgment and denies defendant’s Motion for Summary Judgment.
II. BACKGROUND
A. Facts
Defendant Christian HVAC is a for-profit corporation. Def.’s Mot. for Summary Judgment, Statement of Uncontested Facts, ¶ 3 (“Defi’s Mot. SOF”); Pl.’s Resp. to Def.’s Statement of Uncontested Facts, ¶ 3 (“Pl.’s Resp. SOF”). Christian HVAC installs and services heating and air
• All mechanics employed by Christian HVAC are required to wear an I.D. badge that displays their name' and a photograph on the front, and a portion of Christian HVAC’s mission statement on the back. Def.’s Mot. SOF at ¶6; PL’s Resp. SOF at 116; Peppelman Dep. at 57:6-58:2. The portion of the mission statement displayed on the back of the I.D. badges reads:
This company is not only a business, it is a ministry. It is set on standards that are higher than .-man’s own. Our goal is to run this company in a way most pleasing to the Lord.
Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family -is our plan.
Def.’s Mot. SOF at ¶7; Pl.'s Resp. SOF at ¶ 7. Peppelman testified that the purpose of the mission statement is to communicate “what we believe and how we want to be perceived by the public” and by customers. Peppelman Dep. at 74:5-9.
Plaintiff Paul Mathis was employed as a heating and air conditioning installation mechanic by Christian HVAC from April 26, 2010 until January 23 or 24, 2012. Def.’s Mot.- SOF at ¶¶ 1-2; PL’s Resp. SOF at ¶¶ 1-2; PL’s Mot. -for Partial Summary Judgment, Statement of Uncontested Facts, ¶ 4 (“PL’s Mot. SOF”). Mathis identifies as an atheist. PL’s Mot. SOF at ¶ 4. Mathis testified that he does not have any religious beliefs, and that he has been an atheist since before he reached adulthood. Mathis Dep. at 81:23-83:12. Mathis was not asked about his religious beliefs during his interview with Christian HVAC, but during his employment Mathis spoke to other Christian HVAC employees about the fact that he is an atheist. Id. at 83:13-17, 84:3-21. Mathis did not recall specifically informing anyone involved in the management of Christian HVAC, including Pep-pelman, that he was an atheist. Id. at 85:4-14.
Mathis testified that Peppelman often told him that he should attend church or implied that Mathis would not have various problems if he attended church with Pep-pelman. Id. at 29:22-23, 39:16-22, 40:1-12, 59:6-22. Peppelman had these types of conversations with many of his employees, hot just Mathis. Id. at 49:14-24; PL’s Resp. Ex. D at 12:5-23, 23:15-24:3 (“Miller Dep.”); PL’s Resp. Ex. E at 13:24-14:15, 16:22-17:17 (“McNulty Dep.”); PL’s Resp. Ex. F. at 12:15-13:11, 29:6-30:3 (“O’Brien Dep.”); PL’s Resp. Ex. G at 11:10-21 (“Smith Dep.”). When Peppelman initiated these conversations, Mathis would respond that he did not “appreciate you talking to me like this. I don’t appreciate you trying to push your religion,” and Mathis would walk away. Mathis Dep. at 41:12-19, 84:23-85:3; Smith- Dep. at 9:8-10:24. Mathis told Peppelman “that I didn’t appreciate it, that it was unwanted and unneeded, but” Mathis “didn’t really know that I needed
At some point during his employment with Christian HVAC, Mathis placed a piece of tape over the back of his I.D. badge in order to cover up the mission statement. Id. at 57:9-58:7. Toward the end of his employment, Mathis received a new I.D. badge and also applied tape to cover up the mission statement. Id. at 57:17-20. Mathis covered the mission statement because, as an atheist, he did not agree with what he perceived to be its religious message. PL’s Mot. SOF at ¶ 8; Def.’s Resp. SOF at ¶ 8; see also Mathis Dep. at 90:14-17, 91:14-17; O’Brien Dep. at 21:22-22:3. No one involved in the management of Christian HVAC had ever noticed that Mathis had covered the mission statement on either of his badges until his last day of work, January 23, 2012. PL’s Mot. SOF at ¶ 9; Def.’s Resp. SOF at ¶ 9. Mathis did tell other employees — Ed McNulty, Gary O’Brien, Jr., Brandon Miller, and possibly his supervisor, Rick Hoffman — that he had covered the mission statement because he did not agree with it and felt that employees should not “have to wear a religious statement because of somebody else’s religion.” Mathis Dep. at 90:24-91:20. Mathis did not object to working for a company named “Christian,” and did not object to driving a truck with a dove logo. Id. at 32:24-33:12.
On the morning of January 23, 2012, Peppelman overheard Mathis complaining to his partner, McNulty, that he was having trouble with the heater in a rental property that he owned. Mathis Dep. at 58:14-15, 59:6-18. Peppelman interjected that Mathis “wouldn’t have all those problems in [his] life if [he] went to church with” Peppelman. Id. at 59:17-22. Mathis responded that he had repeatedly asked Peppelman not to “push[ ] [his] religion” and insisted that his “issue with a rental property ha[d] absolutely nothing to do with [his] belief in God or not.” Id. at 59:23-60:6. Mathis then ended the conversation and walked away. Id. at 60:6-7.
A few minutes later, while standing on a loading dock about four feet above Mathis, Peppelman noticed that something was on the back of Mathis’s I.D. badge. PL’s Mot. SOF at ¶ 10; Def.’s Resp. SOF at ¶ 10; Mathis Dep. at 60:8-16. Peppelman asked to examine the badge. PL’s Mot. SOF at ¶ 10; Def.’s Resp. SOF at ¶ 10; Mathis Dep. at 60:17. Mathis showed him the badge, and Peppelman asked what was on the back. Mathis Dep. at 60:18-19. Mathis responded that he had covered the back of the I.D. badge with tape because he did not agree with the mission statement. Id. at 60:19-22; PL’s Mot. SOF at ¶11. In response, Peppelman told Mathis, “You’re going to wear it or you’re done.” Mathis Dep. at 60:23-24; Peppelman Dep. at 37:9-38:2.
Mathis again told Peppelman that he disagreed with him “trying to push [his] religion on” him. Peppelman Dep. at 37:9-11; McNulty Dep. at 23:15-20; Smith Dep. at 15:8-19. Mathis offered to wear the badge with the tape on the back, which he believed complied with company policy of wearing the badge. Mathis Dep. at 62:7-9. Peppelman then reiterated that if Mathis did not want to wear the badge with both sides uncovered, then he was “done,” and told Mathis that, by refusing to wear the badge as required by Christian HVAC company policy, Mathis had “quit” his employment with Christian HVAC. Peppel-man Dep. at 34:15-24 (transcription of vid
At his deposition, Peppelman testified that Mathis “wasn’t terminated. It was, if you don’t wear it, you’re gone,” and that there was no difference between Mathis quitting and being terminated because “[i]f he says he doesn’t want to wear [the badge displaying the mission statement] and he won’t wear it, to me, that’s quitting.” Pep-pelman Dep. at 36:21-22, 39:8-12. Peppel-man also testified that if Mathis had removed the tape from the badge, he would still be employed and likely would not have been disciplined. Id at 40:5-7, 40:17-21. Peppelman confirmed that the only choice Mathis had was to wear the badge without the tape if he wanted to continue to work at Christian HVAC. Id at 41:20-42:10.
’ Mathis testified that he was terminated or “fired” because he “would not wear [the badge] with the mission statement uncovered.” Mathis Dep. at 102:11-13. He “was forced to” remove the tape “or lose [his] job.” Id. at 103:22-23.
B. Procedural History
After Mathis ceased to work for Christian HVAC, he applied to the Pennsylvania Unemployment Compensation Service Center for unemployment compensation benefits and received a Notice of Determination denying benefits dated February 8, 2012. Mathis v. Christian Heating and Air Conditioning, Inc.,
Mathis timely filed an appeal for review of the UCBR’s order to the Pennsylvania Commonwealth Court. Id That court upheld the findings of the UCBR, concluding that there was substantial evidence to support the UCBR’s conclusion that Mathis had been offered a “real choice between [the] alternatives” of removing the tape and continuing employment, or refusing to remove the tape and thereby ending his employment.
Mathis next dual-filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and with the Pennsylvania Human Relations Commission alleging that he was discharged from his employment as a result of discrimination based on religion, retaliation, and failure to provide a reasonable accommodation. Mathis,
. On June 27, 2013, Mathis filed the present suit in this Court. Id. In the Complaint, he asserts claims under Title VII and the PHRA. He avers that (1) he was denied a reasonable religious accommodation by defendant and-(2) he was terminated in retaliation for his religious beliefs, his requested accommodation, and his complaints about “what he felt was religious discrimination.” Id.
On October 1, 2013, defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). By Memorandum and Order dated October 7, 2014, this Court ruled that plaintiffs failure to accommodate claim was barred by collateral estoppel. Id. at 580. The Court also found that, in’ connection with his retaliation claim, plaintiff was estopped from re-litigating the UCBR’s and the Commonwealth Court of Pennsylvania’s “pure factual finding that he had chosen-to leave his employment rather than remove the tape from his identification badge,” but otherwise denied the Motion to Dismiss with respect to plaintiffs retaliation claim. Id. at 582.
On February 20, 2015, plaintiff filed a Motion for Clarification of the Court’s Memorandum and Order of October 7, 2014, requesting that the Court address whether plaintiff was precluded from arguing that he was actually terminated by his employer as a result of-engaging in protected activity. Mathis v. Christian Heating and Air Conditioning, Inc., 91 F.Supp.3d 651, 655 (E.D.Pa.2015). Plaintiff cited for the first time a provision of Pennsylvania Unemployment Compensation Law, 43 P.S. § 829, which provides in relevant part that:
No finding of fact or law, judgment, conclusion or final order made with respect to a claim for unemployment compensation under this act may be deemed to be conclusive or binding in any separate or subsequent action or proceeding in another forum.
Id. The Court treated this motion as a motion for reconsideration, granted reconsideration, and reversed its prior ruling on defendant’s motion to dismiss. Id. at 656. Because § 829 prohibits findings of fact and conclusions of law made by the UCBR and upheld by the Commonwealth Court in plaintiffs unemployment compensation proceedings from being conclusive or binding in subsequent actions, the Court determined that plaintiff is not barred from litigating all factual issues relevant to both of his claims. Id at 658.
By Order dated May 20,2015, this Court granted defendant leave to amend its An
Presently before the Court are two motions: (1) plaintiffs Motion for Partial Summary Judgment as to defendant’s affirmative defense under RFRA (filed June 8, 2015) and (2) defendant’s Motion for Summary Judgment as to all of plaintiffs claims (filed July 20, 2015). For the following reasons, the Court grants plaintiffs Motion
III. LEGAL STANDARD
The Court will grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,
IV. DISCUSSION
A. Plaintiffs Motion for Partial Summary Judgment as to Defendant’s Affirmative Defense under RFRA
Plaintiffs Motion for Summary Judgment' -seeks dismissal of defendant’s affirmative defense under RFRA that enforcement of Title VII and the PHRA in this case would violate defendant’s free exercise rights. PL’s Mot. at 1.- Plaintiff argues that (1) RFRA is not available in suits between private parties because RFRA protects individuals only from the federal government’s burden on the free exercise of religion and (2) if RFRA does apply, then the accommodation sought in thjs case under Title VII is the least restrictive means of accomplishing a compelling .governmental interest in eradicating workplace discrimination. Id. at 3, 8. In support of the first argument, plaintiff relies on the decisions of three United States Courts of Appeals that have held that RFRA is not available as a defense in an action between private parties. See Listecki v. Official Comm. of Unsecured Creditors,
Defendant urges the Court to follow the logic of a decision from the United States Court of Appeals for the Second Circuit, which concerned claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., (“ADEA”). See Hankins v. Lyght,
The Third Circuit has not addressed the question of whether RFRA can be raised as a defense in a lawsuit brought by an individual, and not the government. For the following reasons, the Court agrees with the majority interpretation that RFRA only applies to suits in which the government is a party, and grants plaintiffs Motion to strike the affirmative defense based on RFRA.
The interpretation of any statute begins with the text. Allen ex rel. Martin v. La-Salle Bank, N.A.,
“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except.... Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest...”
42 U.S.C. § 2000bb-1. RFRA defines “government” to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” 42 U.S.C. § 2000bb-2(1). RFRA “applies to all Federal law, and the implementation of that law.” 42 U.S.C. § 2000bb-3. RFRA’s “Judicial relief’ section provides that “[a] person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000cc-2.
Three United States Courts of Appeals have concluded that this language makes
Furthermore, the burden-shifting framework set forth in RFRA requires “the Government” to “demonstrate[ ]” that its actions constitute the least restrictive means of pursuing a compelling governmental interest. 42 U.S.C. § 2000bb-l (emphasis added). RFRA defines “demonstrates” as “meets the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). “It is self-evident that the government cannot meet its burden” under this framework “if it is not a party to the suit.” Listecki,
If there were any doubt as to the clarity of RFRA’s language, its legislative history confirms that the government must be' a party in order for the statute to apply. See In re Lord Abbett Mut. Funds Fee Litig.,
Defendant relies on the Second Circuit’s interpretation of RFRA in Hankins, 441 F.3d at-103-04. Hankins involved a suit brought under the ADEA. The Second Circuit there permitted a private defendant to assert a RFRA defense because, hypothetically, the government, through the EEOC, could have been a party to the action. Id. at 103. This Court does not find the logic of Hankins convincing. First, Hankins relies on the. assumption that “the substance of’ federal statutory discrimination “prohibitions cannot change depending on whether it is enforced by the EEOC or an aggrieved private party.” Id. at 103. There is no authority for such an assumption. Indeed, as then-Judge Soto-mayor explained in her dissent, “[i]f RFRA amends all federal statutes as they apply to suits in which the government is a party, then the substance of [a statute’s] prohibitions most certainly can change depending on who enforces it.” Id. at 115 (Sotomayor, J., dissenting) (emphasis in original).
Accordingly, the Court grants plaintiffs Motion for Partial Summary Judgment and strikes defendant’s affirmative defense under RFRA from its Amended Answer.
B. Defendant’s Motion for Summary Judgment as to Plaintiffs Title VII and PHRA Claims
Title VII and the PHRA are interpreted co-extensively. Thompson v. Kellogg’s USA,
“In the Third Circuit, employees may rely on two different theories to establish a claim for religious discrimination: ‘disparate treatment’ on account of religion, or ‘failure to accommodate’ religious beliefs,” Wallace v. City of Philadelphia, No. 06 Civ. 4236, 2010 *WL 1730850, at *6 (E.D.Pa. Apr. 26, 2010) (quoting Abramson v. William Paterson College of N.J.,
In this case, plaintiff asserts claims under three theories for (1) termination due to his religious beliefs, (2) denial of a' reasonable religious accommodation, and (3) termination in retaliation for requesting a reasonable religious accommodation. PL’s Resp. at 2. Defendant moves for summary judgment as to all of plaintiffs claims and seeks dismissal of this action, but defendant’s Motion only presents arguments concerning the failure to accommodate and retaliation theories. Def.’s Mot, at 8,11,13. Because it is defendant’s Motion that is presently before the Court, the Court will only address these two theories. For the following reasons, the Court denies defendant’s Motion.
1. Failure to Accommodate
To establish a prima facie failure to accommodate claim, “the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.” E.E.O.C. v. GEO Grp., Inc.,
(a.) First Eldneht
There is no dispute that plaintiffs atheistic beliefs are sincere. The Oxford English Dictionary defines “atheist” as: “A person who disbelieves or lacks beliéf in the existence of God" or gods.” Plaintiff testified that he has been an atheist for most of his life, that he has no religious beliefs, and that he rejected any practice of organized' religion before he reached adulthood. Mathis Dep. at 81:23-83:12. Under Title VII, atheists are entitled to the exact same protection as members of other religions. E.g., Reed v. Great Lakes Companies, Inc.,
However, defendant contends that “there is no evidence that [plaintiffs] beliefs conflict with a job requirement.” Id. The record and common sense belie this assertion. The parties agree that it was a job requirement for plaintiff to wear his I.D. badge, with both sides uncovered, at all times. Pl.’s Mot. SOF ¶ 6; Def.’s Resp. SOF ¶ 6; Peppelman Dep. at 57:6-58:2. The parties also agree that the mission statement displayed on the I.D. badge explicitly refers to “pleasing... the Lord” and invokes “standards that are higher than man’s own.” Def.’s Mot. SOF at ¶ 7; Pl.’s Resp. SOF at ¶ 7. Plaintiff also testified that he did not believe in the mission statement and that he disagreed with being compelled “to wear a religious statement” at work “because of somebody else’s religion.” Mathis Dep. 91:14-17. Plaintiff also consistently objected to Peppelman’s comments about attending church. Id. at 41:12-19, 84:23-85:3; Smith Dep. at 9:8-10:24.
A reasonable trier of fact could conclude that .a statement that references “the Lord” and “standards that are higher than man’s own” conflicts with the views of an individual “who disbelieves or lacks belief in the existence of God.” Cf. Schwartzberg v. Mellon Bank, N.A., No. 02 Civ. 1006,
(b.) Second Element
The second element requires a plaintiff to have informed his employer of the conflict between a job requirement and his beliefs. GEO Grp.,
On this issue, plaintiff testified that on his last day of work, after Peppelman discovered the tape on his I.D. badge, he repeated his objection to Peppelman pushing his religion and explained that he covered the mission statement based on a disagreement with its message. Id. at 60:19-22, 97:13-98:8; Pl.’s Mot. SOF at ¶ 11. At his deposition, Peppelman agreed that plaintiff had asked him to stop pushing his religion during this conversation. Peppel-man Dep. at 37:9-11. However, Peppelman contradicted himself when he testified that he did not recall having any previous religious-themed discussions with Mathis, that he never told Mathis to go to church, and that he did not know that Mathis was an atheist. Peppelman Dep. at 16:10-15, 17:20-18:4, 18:19-24.
The Court cannot resolve these factual disputes at the summary judgment stage. In short, plaintiff has presented sufficient evidence for a reasonable jury to conclude that he informed defendant of his religious-based objection to wearing the required I.D. badge with defendant’s mission statement on the reverse side.
Plaintiff has also presented evidence that would permit a reasonable fact-finder to infer that Peppelman failed to accommodate plaintiff “because” of plaintiffs atheism. The Supreme Court recently explained that a plaintiff claiming intentional religious discrimination under Title VII need not establish that he provided his employer with actual knowledge of his need for an accommodation. Abercrombie,
prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Id. at 2033 (emphasis in original).
Plaintiff correctly argues that Title, VII, as interpreted in Abercrombie, does not require him to prove that he advertised his atheistic beliefs to his employer, nor does it require that he prove that he phrased his .disagreement with the mission statement in-terms of his atheism. See'PL’s Resp. at 18. Plaintiff need only show that defendant acted upon an improper motive when it terminated his employment and/or when it failed to accommodate him. See Abercrombie,
A reasonable jury could conclude that defendant refused to accommodate plaintiff “becáuse of’ plaintiffs beliefs. Plaintiff told Peppelman that he “didn’t appreciate it” when Peppelman encouraged him to attend church and that these invitations were “unwanted and unneeded.” Mathis Dep. at 89:18-23. On plaintiffs last day of work, Peppelman told plaintiff that he “wouldn’t have all those problems in [his] life if [he] went to church with” Peppel-man. Id. at 59:17-22. Plaintiff reiterated his objections to what he considered to be Peppelman “pushing [his] religion” and insisted that his “issue with a rental property ha[d] absolutely nothing to do with [his] belief in God or not.” Id. at 59:24-60:6. Peppelman then discovered that plaintiff had covered the mission statement on his I.D. badge and Peppelman almost immediately told plaintiff “You’re going to wear it or you’re done.” Id. at 60:23-24; Peppel-man Dep. at 37:9-38:2. Plaintiff repeated that he disagreed with. Peppelman “trying to push [his] religion on” him. Peppelman Dep. at 37:9-11. Peppelman then insisted that plaintiffs refusal to wear the badge as required by defendant’s policy meant that plaintiff had “quit” his employment with defendant. Peppelman Dep. at 34:15-24; Mathis Dep. at 61:2-5; 61:20-24. Peppelman took the badge from plaintiff before plain
' A reasonable trier of fact could infer from this evidence that Peppelman terminated plaintiffs employment “with the motive of avoiding accommodation,” in violation of Title VII. See Abercrombie,
(c.) Defendant’s Burden
Because plaintiff has presented sufficient evidence in support of his prima facie case, the burden shifts to defendant to prove either that it “made a good-faith effort to reasonably accommodate” plaintiffs beliefs or that the requested accommodation “would work an undue hardship upon” defendant’s ability to conduct business. GEO Grp., Inc.,
Courts have concluded that accommodations requiring overtime pay, replacement employees, additional contributions to insurance and pension funds, compromises of scheduling or seniority systems, or risking regulatory or criminal sanctions can all constitute undue hardships for an employer. Trans World Airlines, Inc. v. Hardison,
Defendant responds to the inquiry into whether the accommodation that plaintiff sought was reasonable by arguing that the plaintiff himself was reasonable or “intolerant.” Id. Defendant also misunderstands the accommodation requested by plaintiff. On his last day of work, plaintiff did not demand that the mission statement to be removed from all employees’ I.D. badges, nor did plaintiff refuse to wear the badge because of the mission statement. Rather, plaintiff sought only to keep the piece of tape concealing the mission statement on the back of his badge alone, and was willing to continue displaying the front part of the badge with his name and picture. See Mathis Dep. at 62:7-9. This accommodation is less burdensome than the one defendant presents in its Motion, and is a compromise with defendant’s stated policy that employees must wear I.D. badges at ail times. Peppelman Dep. at 57:6-68:2.
In addition, defendant does not claim that it is a religious organization entitled to exemption from Title VII and cites no authority for the proposition that any burden on a secular employer’s preferred method of exercising its religious beliefs constitutes an undue hardship as a matter of law. See 42 U.S.C. § 2000e-l(a) (exempting religious organizations from prohibition of religious discrimination). And defendant’s I.D. badge policy is not neutral because it requires employees to bear the defendant’s religious message.
Finally, defendant does not explain how plaintiffs requested accommodation would impose more than a de minimis cost on its business. In this case, permitting plaintiff to use a piece of tape is a de minimis financial burden for defendant to-bear. Defendant has presented no evidence showing that‘its business would suffer or be made more difficult if it permitted plaintiff to cover the mission statement. Peppelman stated that the purpose of the mission statement is to communicate “what we believe and how we want to be perceived by the public” and by customers, but defendant has not shown how the public perception of Christian HVAC would be harmed if only plaintiffs I.D; badge did not display the mission statement on the reverse side. Peppelman Dep. at 74:5-9. Nor has defendant alleged any harm to its reputation as a result of plaintiff wearing the I.D. badge with the mission statement covered for some time before his termination. Based on this record, the Court concludes that a reasonable jury could decide this issue in plaintiffs favor. The question, of whether the accommodation imposes an undue hardship should be determined by a trier of fact.
For the foregoing reasons, the Court denies defendant’s Motion for Summary Judgment with regard to plaintiffs failure to accommodate claim.
2. Retaliation
“A prima facie case of. illegal retaliation requires a showing of (1) protected employee activity; (2) adverse action
Defendant challenges the first element of plaintiffs retaliation claim by arguing that plaintiffs “lack of regard for his employer’s religious beliefs, and the company’s mission statement, cannot be equated with a reasonable belief, in good faith, that he engaged in protected activity.” Def.’s Mot. at 12. The Court rejects this argument. A trier of fact could conclude that plaintiff had a reasonable belief that the activities he opposed&emdash;Peppelman’s recommendations that he attend church and defendant’s requirement that he display its religious mission statement on his I.D. badge&emdash;could be unlawful under Title VII. Plaintiff has also adduced evidence that he notified his superior, Rick Hoffman, that he disagreed with the mission statement’s message and with Peppelman’s statements about religion. Mathis Dep. at 44:2-44:8, 64:9-21, 90:24-91:20. Additionally, on plaintiffs last day of work he informed Peppelman that he covered his I.D. badge because he disagreed with the mission statement, and volunteered that this was related to his frustration with Peppelman’s suggestions that plaintiff attend church. Pl.’s Mot. SOF at ¶ 11; Mathis Dep. at 60:19-22; Peppelman Dep. at 37:9-11; McNulty Dep. at 23:18-20; Smith Dep. 15:8-19. In context, a reasonable factfinder could infer that Peppelman understood that plaintiff had a religious-based objection to his proselytizing and to defendant’s mission statement that invoked “the Lord” and “standards that are higher than man’s own.” This is sufficient to create a genuine dispute of material fact regarding whether plaintiff opposed a specific employment practice on religious grounds, and thus engaged in protected activity.
Defendant also challenges the second element of plaintiffs retaliation claim, arguing that “no adverse employment action was ever taken against” plaintiff because “he was not immediately terminated.” Def.’s Mot. at 13. According to defendant, plaintiff “was given the option to continue employment so long as he displayed both sides of the identification badge” and plaintiff “voluntarily chose to depart rather than comply with his employer’s directive.” Id.
An adverse employment action is one that necessitates “a significant change in employment status, such as... firing.” Durham Life Ins. Co. v. Evans,
The Court concludes that a reasonable jury could find that defendant fired plaintiff based on the evidence presented. Pep-pelman told plaintiff “you’re gone” or “you’re done.” Mathis Dep. at 60:23-24; Peppelman Dep. at 37:9-38:2. Peppelman continued to make these statements even after plaintiff said that he “disagreed” with Peppelman’s interpretation that plaintiff had “quit.” Peppelman Dep. at 35:9-14, 36:23-37:7; Mathis Dep. at 61:3-7, 64:5-8. Peppelman also testified that he “terminated” plaintiff “for not wearing the badge the way it should be” with the mission statement displayed. Peppelman Dep. 31:21-32:6; see also Miller Dep. at 21:2-11 (explaining that he believed that Peppel-man fired Mathis, and that Mathis did not quit); O’Brien Dep. at 31:12-32:1, 37:10-15 (same); Smith Dep. at 20:13-18 (same). This evidence would support a finding by a reasonable trier of fact that plaintiff was terminated by defendant and did not voluntarily quit his job.
In addition, defendant’s argument that plaintiff was “given the option” to choose between displaying the mission statement — after plaintiff had explained to Peppelman that he objected to doing so based on his beliefs — and between “quitting,” ignores the fact that constructive discharge is an adverse action under Title VII. To establish a constructive discharge, a plaintiff must show that “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Goss v. Exxon Office Systems Co.,
Peppelman testified that the only choice Mathis had was to wear the badge without the tape if he wanted to continue to work. Peppelman Dep. at 41:20-42:10. Plaintiffs objection to wearing the badge without tape was based on his religious beliefs as an atheist. PL’s Mot. SOF at ¶ 8; Def.’s Resp. SOF at ¶ 8; Mathis Dep. at 91:14-17; Smith Dep. at 19:7-17. A reasonable jury could conclude that plaintiff communicated his religious-based objection to displaying the mission statement, and that Peppel-man. gave him a Hobson’s choice between continuing to work under conditions that offended plaintiffs beliefs or ending his employment. That evidence, if accepted by a jury, constitutes a constructive discharge.
V. CONCLUSION
For the foregoing reasons, the Court-grants plaintiffs Motion for Partial Summary Judgment and strikes defendant’s affirmative defense under RFRA. The Court denies defendant’s Motion for Summary Judgment. An appropriate order follows.
Notes
. As required on a Motion for Summary Judgment, the facts are presented in the light most favorable to the nonmoving party. Wishkin v. Potter,
. The Decision and Order relied on 43 Pa. Cons. Stat. Ann. § 802(b), which provides “An employee shall be ineligible for compensation for any week... in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment” as defined in this act.” Mathis,
. The Commonwealth Court's scope of review was limited to determining whether necessary findings of fact were supported by substantial evidence, whether an error of law was com
. Plaintiffs Motion states that "If this Court rejects Defendant’s argument that Plaintiff was allegedly terminated, it is respectfully submitted that the remaining issués are so clear, that Plaintiff should be entitled to summary judgment. ” Pi’s Mot, at 12-13 (emphasis in original). Rule 56(f) provides in relevant part that "[a]fter giving notice and reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant....” Fed. R. Civ. P. 56(f), The Court declines to exercise its .authority under this provision.
. RFRA only applies to burdens on religious exercise that are imposed by the federal government, see Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
. It should be further noted that RFRA does not expressly include private actors within its reach. When Congress has intended to regulate private actors in statutes, such as Title VII, it has done so’ explicitly. See 42 U.S.C. § 2000e-(b) ("The term ‘employer’ means' a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person.”). The Ninth Circuit found the exclusion of private actors meaningful in concluding that RFRA is only available when the government is a party. Sutton,
. In other contexts, it is well settled that the government and private parties seeking to enforce the same law do not have the burden of proving identical elements. E.g. GFL Advantage Fund, Ltd. v. Colkitt,
. The PHRA provides “It shall be an unlawful discriminatory practice... (a) For any employer because of the... religious creed... of any individual or independent contractor, to refuse to hire or employ or contract with, or to bar or discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract... (d) For any person, employer, employment agency or labor organization to discriminate in any manner against any individual because
. See Davis v. U.S. Postal Serv.,